Vela v Dos Santos (A3061/2018) [2019] ZAGPJHC 123 (28 March 2019)

Vela v Dos Santos (A3061/2018) [2019] ZAGPJHC 123 (28 March 2019)

The court held that the respondent was entitled to cancel the lease agreement due to the appellant's material breach in failing to provide full occupation of the premises, as required by the lease and common law. Clause 22, which purported to exclude cancellation, was found to be unconstitutional and unenforceable, as it conflicted with public policy and the Rental Housing Act. The respondent gave reasonable notice to remedy the breach, which the appellant failed to do. The inspection conducted by the respondent's representative and the appellant's housekeeper was deemed sufficient, and the appellant's failure to conduct a joint inspection triggered the statutory presumption that the...

Citation
[2019] ZAGPJHC 123
Parties
Appellant: Robin Vela; Respondent: Marta Eduardo Dos Santos
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
28 March 2019
Case Number
A3061/2018
Procedural Posture
Civil Appeal / Appeal From Magistrates Court Judgment and Order
Outcome
Appeal dismissed; cross-appeal upheld; respondent entitled to remission of rental and refund of deposit.
Judges
L G Nkosi-Thomas, S E Weiner
Legal Topics
Lease Agreement, Remission of Rental, Material Breach, Deposit Refund, Unfair Contract Terms
Land and Property Civil Procedure Lease Agreement Remission of Rental Material Breach Deposit Refund Unfair Contract Terms

Case Brief

Summary, issues, holding and outcome

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Parties

Robin Vela

Appellant

Marta Eduardo Dos Santos

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrates Court Judgment and Order

Legal Issues

  1. 1 Whether the respondent's cancellation of the lease agreement was valid and entitled her to a refund of prepaid rental.
  2. 2 Whether the respondent was entitled to a full refund of her deposit.
  3. 3 Whether the respondent was entitled to a remission of rental for the period of diminished occupation due to third-party tenants.

Ratio Decidendi

The court held that the respondent was entitled to cancel the lease agreement due to the appellant's material breach in failing to provide full occupation of the premises, as required by the lease and common law. Clause 22, which purported to exclude cancellation, was found to be unconstitutional and unenforceable, as it conflicted with public policy and the Rental Housing Act. The respondent gave reasonable notice to remedy the breach, which the appellant failed to do. The inspection conducted by the respondent's representative and the appellant's housekeeper was deemed sufficient, and the appellant's failure to conduct a joint inspection triggered the statutory presumption that the...

Court Disposition

Appeal dismissed; cross-appeal upheld; respondent entitled to remission of rental and refund of deposit.

Orders

  • The application for reinstatement of the appeal and cross-appeal is granted.
  • The appeal is dismissed.